We have reviewed the draft report of the Office of Inspector General (OIG), entitled "Review of the Critical Incident Response Plans of the United States Attorneys' Offices," and submit comments herein as requested. We agree with the OIG's conclusion that the Criminal Division's Counterterrorism Section (CTS) and the Executive Office for United States Attorneys (EOUSA) could have focused more attention on certain aspects of the crisis response program, especially during the period between September 11, 2001 and the fall of 2002. To the extent further explained below, moreover, we concur with the draft report's recommendations and have already made considerable progress on a number of them.

We believe the report would be more accurate, however, if it more clearly reflected that the Department is more prepared today to respond to critical incidents than it has been in the past. Much of the report focuses on historical flaws in the process by which Critical Incident Response Plans were developed and assessed. While the report's discussion of these flaws contains useful lessons for the future, we are concerned that some readers of the report may misunderstand the scope and nature of our past and current crisis response efforts. We believe that the following three points deserve much greater recognition: 1) the existence and use of the Critical Response Plans is merely one factor to consider in assessing whether United States Attorneys' Offices (USAOs) are adequately prepared to respond to critical incidents; 2) CTS, EOUSA, and USAOs have undertaken extensive and comprehensive joint efforts during the past two years to enhance the Department's overall ability to respond to critical incidents; and 3) the Department is currently making substantial progress toward successfully implementing most of the recommendations suggested in the draft report. We discuss these points below, along with comments on the report's final conclusion and the report's recommendations.1

II. Specific Issues

A. The Existence and Use of the Critical Response Plans

In our view, the draft report does not place the existence and use of the Critical Response Plans in the appropriate context. We agree that aspects of the response plans could have been better handled by all entities involved. As the draft report points out, initial plans submitted by the USAOs could and should have been monitored, and USAOs should have been provided feedback about the content of those plans. However, the question of whether the Critical Incident Response Plans existed, or contained specific action items, is merely one area of inquiry pertinent to answering the broader question of whether USAOs are prepared to respond to critical incidents. We believe that it is absolutely crucial and appropriate for the report to more clearly reflect this point. For example, some of the recommended actions in the 48-item checklist, which is adopted in the draft report as the criteria against which to measure the plans, are so second nature to the experienced prosecutors drafting and/or implementing these plans that there would be no need to specifically list them. Although a USAO might not include these items in a written plan, it would nevertheless take many of those actions in response to a critical incident, as deemed appropriate. Moreover, the USAO may not have included other recommended items in the checklist, such as the preservation of the crime scene, because these items are primarily under the domain of the FBI or another law enforcement entity responsible for handling the crime scene. While the USAO would certainly support the FBI or other law enforcement entity in every way possible to assist in these efforts, it would not necessarily include them as part of its own plan. The fact that such steps are not included in a plan would not indicate that these steps were not significant or necessary. They simply do not need to be set forth in the USAO plan. Thus, we do not believe that inclusion of items on this checklist is the proper standard by which to determine whether USAOs around the country are prepared to respond to a crisis. We will continue to encourage USAOs to use CTS' "Guide to Developing a Crisis Response Plan," distributed by CTS and EOUSA in May of 2003, to assist them in developing and revising their plans.

B. CTS. EOUSA. and the USAOs Have Undertaken Extensive and Comprehensive Joint Efforts During: the Past Two Years to Enhance the Department's Overall Ability to Respond to Critical Incidents

We regret that the draft report does not more thoroughly identify and recognize the fundamental ways in which the Department has refocused its efforts on the prevention of terrorist incidents since September 11, and the training conducted to prepare the Department for such events: The draft report does not clearly acknowledge the extensive and comprehensive joint efforts undertaken during the past two years to enhance the Department's overall ability to respond to critical incidents. The draft report notes that the Crisis Management Coordinators' (CMCs) program was "designed to improve the ability of the USAOs to accomplish their statutory responsibilities while responding quickly and appropriately to critical incidents" and "to improve USAOs' performance in legal and procedural crisis response " (Draft report at 3). The draft report, however, does not adequately reflect the substantial changes that were made in CTS, EOUSA, and the USAOs in response to 9/11 to focus attention on critical response to terrorism incidents. For example, the Attorney General's revision of the Department's Strategic Plan, and the establishment of the Anti-Terrorism Task Forces (now Anti-Terrorism Advisory Council) and the Intelligence Research Specialists' Program significantly enhanced the Department's preparedness efforts.

The review also faults CTS and EOUSA for failing to provide appropriate training and guidance as to changes in law and departmental and national policy (Draft report at iii, 18, 22). We believe that the report should have clearly noted the considerable substantive legal training provided to United States Attorneys and Assistant United States Attorneys, many of whom were CMCs, on crisis response responsibilities in terrorism incidents. For example, the draft report does not reference the training that EOUSA co-sponsored with the Centers for Disease Control in April 2003 on responding to chemical or biological incidents, Department training for prosecutors and investigators on the USA PATRIOT Act, and other changes in law relative to intelligence and law enforcement techniques and information sharing, and a broad array of substantive training provided by EOUSA to USAOs and Department attorneys through EOUSA's Office of Legal Education and JTN broadcasts. This training specifically addressed crisis response in terrorism incidents and provided updated legal and procedural training to improve the ability of the USAOs to satisfy the full range of their statutory responsibilities in response to a crisis.

C. Progress Made Since The Late Fall of 2002

The draft report gives little weight to the numerous, varied, and significant actions undertaken by CTS, EOUSA, and USAOs since the late fall of 2002 that are entirely consistent with the report's recommendations. Although we agree that CTS and EOUSA could have done more to focus attention on certain aspects of the crisis response program, especially between September 11, 2001 and the fall of 2002, we have been working together since then to provide the necessary focus and training to improve the crisis response program. For example, in the late fall of 2002, planning began for a January 2003 antiterrorism conference for United States Attorneys that was co-sponsored by CIS and EOUSA. A portion of that conference was devoted to a crisis response exercise. Moreover, as a result of the March 2003 CMC-specific video- conference and the May 2003 updated and specific guidance contained in the "Guide to Developing a Model Crisis Response Plan" provided to USAOs, numerous USAOs across the country are currently revising their plans in accordance with that guidance. In addition, CTS and EOUSA have scheduled crisis response training at the National Advocacy Center in March of 2004. Furthermore, CTS has reorganized its operations to include the formation of a Policy, Legislation arid Planning group to provide renewed focus on crisis response issues and planning. EOUSA and CTS have taken steps to form a small working group with the Attorney General's Advisory Committee's participation to review revised crisis response plans and provide individualized feedback to all USAOs. Moreover, the Department, as of October 17, 2003, has provided a memorandum to all United States Attorneys requesting that the Crisis Management Program and the Antiterrorism Advisory Council (ATAC) Program in the USAOs be merged and/or realigned to allow the CMC to operate under the ATAC in each district and to work closely with the District Office Security Managers to coordinate efforts on crisis response planning. Inclusion of all of these activities and plans in the report would have demonstrated that crisis response efforts are currently being enhanced to respond to the areas for improvement identified in the OIG report.

D. The Report's Final Conclusion

Finally, we are concerned that the report's final conclusion concerning the Department's overall preparedness exceeds the scope of an inquiry that was limited to a review of critical incident response plans and does not properly credit all the steps taken by EOUSA, CTS, and the USAOs. This is particularly significant because the report, which will be published in November 2003, contains no statement concerning the time frame of the investigation, but includes the finding that the need to prepare for critical incidents has not been met. While we will continue to seek to improve preparedness, we believe that a complete review of past efforts, current work, and future plans demonstrates that the need to prepare is being properly addressed.

E. Recommendations

We address each of the recommendations below.

Recommendation 1:

We concur that performance measures should reflect that the USAOs have meaningful plans and periodically exercise and revise those plans. As reflected in the attached Action Plan for Crisis Management Response Planning, EOUSA will work with CTS in the development of performance measures to assess crisis response plans and exercise and revision of those plans, with a target completion date of June 30, 2004. The establishment of performance measures to evaluate overall readiness is a more complex matter and exceeds the scope of this review.

Recommendation 2:

We concur that critical incident response plans should be revised to conform to the May 2003 "Guide to Developing a Model Crisis Response Plan" drafted by CTS, endorsed by EOUSA, and distributed to all USAOs. As a result of the March 2003 CMC-specific video- conference and the May 2003 updated and specific guidance contained in the "Guide to Developing a Model Crisis Response Plan" provided to USAOs, numerous USAOs across the country are currently revising their plans in accordance with that guidance. As discussed above, EOUSA and CTS have taken steps to form a small working group with the Attorney General's Advisory Committee's participation to review revised crisis response plans and provide individualized feedback to all USAOs. In addition, CTS and EOUSA have scheduled crisis response training at the National Advocacy Center in March of 2004, which will include a table- top exercise designed to test the crisis response plans of every USAO.

Recommendation 3:

We concur that participation in periodic exercises to test critical incident response plans is advisable, but we do not agree that each office should be required to conduct its own exercises. For some offices, particularly smaller USAOs, this may be too much of a burden and diversion from other equally critical duties. CTS personnel are enhancing their expertise in the design of crisis response exercises so that they are batter able to provide specific guidance to USAOs in this area. As EOUSA and CTS plan the March 2004 crisis response training at the NAC, they will also include this in the agenda for that conference.

Recommendation 4:

We concur with this recommendation. EOUSA is exploring appropriate means to implement this recommendation.

Recommendation 5:

We concur with this recommendation and note that efforts to implement it are ongoing. In May of 2003, we provided a "Guide to Developing a Model Crisis Response Plan" which updated prior guidance to USAOs on how to prepare effective and comprehensive critical incident response plans. In addition, in Apri12003, EOUSA co-sponsored with the Centers for Disease Control training on responding to chemical or biological incidents, and the Department has provided training during the past year for prosecutors and investigators on the USA PATRIOT Act, and other changes in law relative to intelligence and law enforcement techniques and information sharing, and a broad array of substantive training provided by EOUSA to USAOs and Department attorneys through EOUSA's Office of Legal Education and JTN broadcasts. As noted above, as a result of the March 2003 CMC-specific video-conference and the May 2003 updated and specific guidance contained in the "Guide to Developing a Model Crisis Response Plan" provided to USAOs, numerous USAOs across the country are currently revising their plans in accordance with that guidance. In addition, CTS and EOUSA are jointly planning a March 2004 training conference at the National Advocacy Center that will provide additional guidance on changes in legislation, policy and critical incidence response practice that have taken place since September 11, 2001.

Recommendation 6:

We concur in this recommendation and are taking steps to implement it. EOUSA, CTS, and the AGAC are forming a small working group to review, evaluate and provide feedback to each USAO on their crisis response plan. CTS has drafted proposed criteria for the evaluation of the plans consistent with the May 2003 "Guide to Developing a Model Crisis Response Plan." In addition, CTS and EOUSA have scheduled crisis response training at the National Advocacy Center in March of2004, which will include a table-top exercise designed to test the crisis response plans of every USAO and provide feedback to them.

Recommendation 7:

With the exception of our comments to Recommendation 3, we concur with this recommendation and are taking steps to implement it by providing guidance on crisis response exercises in the March 2004 training conference at the National Advocacy Center. As noted above, CTS personnel are enhancing their expertise in the design of crisis response exercises so that they are batter able to provide specific guidance to USAOs in this area.

Recommendation 8:

We agree that a critical incident response website available to USAOs would be helpful and are working to augment existing CTS and EOUSA web sites to serve this purpose. CTS has developed a website that is currently being piloted to USAOs and is working with EOUSA to make this website available to all USAOs. This site includes resources on crisis response issues; best practices; updates on law, policies and procedures; and other relevant information. For example, this web site includes the 48 action checklist, the "Guide to Developing a Model Crisis Response Plan", and the Attachment to the Guide. h1 addition, the CTS website links to the EOUSA website which also includes a number of crisis response documents, including the CMC Manual. We believe that it would be more cost effective and a better use of resources to augment the existing websites rather than developing an additional one.

Recommendation 9:

We concur with this recommendation. In connection with the redesignation of CMC' s, EOUSA and CTS have been working closely to track incoming communications from USAOs and to ensure that their records are consistent. It is anticipated that a similar mechanism can be utilized to track submissions of updated crisis response plans.

Recommendation 10:

We concur with this recommendation to the extent that it requests that we ensure that EARS evaluations of USA Os include a requirement for USAOs to have a current, updated crisis response plan and to periodically tests these plans.

In order to further address the recommendations and other aspects of your review, we have attached an Action Plan for Crisis Management Response Planning.

Attachment

cc:

David Downs Liaison
Executive Office For United States Attorneys

Julie Wellman
Liaison
Criminal Division

Vicki Sloan
Director
Departmental Audit Liaison Office

Footnotes

With respect to the table of contents, the third major subject matter heading in the table of contents should be changed to reflect that the "Department" and not "CTS" is responsible for submitting the annual performance report. Although the text of the draft report, at page 29, correctly reflects this fact, the heading in the table of contents does not.